Secretary of State for the Home Department v Muhammad Amjid Khan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice Sharp,Lord Justice Lewison |
| Judgment Date | 08 March 2016 |
| Neutral Citation | [2016] EWCA Civ 137 |
| Date | 08 March 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/1401 |
[2016] EWCA Civ 137
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
IA246822013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Beatson
and
Lady Justice Sharp
Case No: C5/2015/1401
Samantha Broadfoot (instructed by Government Legal Department) for the Appellant
Zane Malik (instructed by AWS Solicitors) for the Respondent
Hearing date: 24 February 2016
Introduction
The respondent, Muhammad Amjid Khan, now aged 34, applied to remain in the United Kingdom as a Tier 4 (General Student) on 20 February 2012. In a letter dated 15 August 2012, the UK Border Agency informed him that the licence of the sponsoring college named in his application had been revoked on 23 May 2012. After the decision in Patel (revocation of sponsor licence — fairness) India [2011] UKUT 00211 (IAC), the Secretary of State had introduced a policy to notify those in the position of Mr Khan and to suspend consideration of their applications for 60 days to enable them remedy the problem. The letter dated 15 August 2012 gave Mr Khan this opportunity. It stated inter alia that it was open to him "to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application". Mr Khan did this on 9 October 2012 but his application was refused by the Secretary of State on 13 May 2013 because on 9 October he did not satisfy the requirements of the Immigration Rules as to maintenance funds.
An appeal by Mr Khan to the First tier Tribunal succeeded, and one by the Secretary of State to the Upper Tribunal was dismissed. The Secretary of State now appeals to this court with the permission of Sales LJ.
The issue before the court is whether, in Mr Khan's circumstances, all he was required to do was, as the tribunals decided, to submit a further application with a new CAS from a fully licensed sponsor and that it sufficed that the other mandatory requirements of a Tier 4 (General Student) application in particular the ability to show proof of sufficient funds to maintain himself during the course, were satisfied at the time of the original application. It is submitted on behalf of the Secretary of State that, when he submitted his application in October 2012, he also had to fulfil those other mandatory requirements. For the reasons given at [38] – [50] below I accept the Secretary of State's submission and would allow her appeal.
The legal framework
For the purposes of this appeal, the Immigration Rules ("the Rules") are of primary relevance. It is, however, appropriate to start by referring to section 3C of the Immigration Act 1971. That provision deals with applications by those with limited leave to remain in the United Kingdom for "variation of the leave": section 3C(1)(a). It provides (section 3C(1)(b), 3C(2)) that where "an application for variation" is made before the existing limited leave expires, the leave is extended by virtue of the section pending a decision on the application for variation and any appeal against a decision refusing it. Leave so extended by section 3C lapses where the applicant leaves the United Kingdom.
The relevant provisions of the Rules, as they stood at the material time, are paragraphs A34 and 34A, 34C, and 34E. Paragraph A34 requires applications to be made either by completing the relevant online application process or by using the specified application form in accordance with paragraphs 34A – 34D. Paragraph 34A provides, among other things, that the application must be accompanied by documents specified as mandatory in the form and notes, and paragraph 34C provides that an application that does not comply with the requirements in paragraph 34A will be invalid and will not be considered. The heading to paragraphs 34E and 34F is "Variation of Applications or Claims for Leave to Remain". They provide:
"34E — If a person wishes to vary the purpose of an application or claim for leave to remain in the United Kingdom and an application form is specified for such new purpose or paragraph A34 applies, the variation must comply with the requirements of paragraph 34A or paragraph A34 (as they apply at the date the variation is made) as if the variation were a new application or claim, or the variation will be invalid and will not be considered.
34F — Any valid variation of a leave to remain application will be decided in accordance with the Immigration Rules in force at the date such variation is made."
Paragraph 34G is headed "Determination of the date of an application or claim (or variation of an application or claim) in connection with immigration". It makes explicit provision for this in the case of applications sent by post (date of posting), those submitted in person (date of acceptance at a UKBA Office), online applications (date of submission), and courier (date of delivery).
Appendix C to the Rules deals with maintenance funds. Paragraph 1A(a) states that an applicant must have the funds specified in the relevant part of the Appendix "at the date of the application". In the case of those applying as Tier 4 migrants, the applicants must have had the funds "for a consecutive 28 day period of time": see Appendix C, paragraph 1A(c). Sub-paragraph (h) of paragraph 1A states that the end date of the 28 day period "will be taken as the date of the closing balance on the most recent of the specified documents" and "must be no earlier than 31 days before the date of application". The amount of the funds required depends on the course fees, the length of the course, whether it is in or out of London, and whether the applicant is a person with "an established presence" in the United Kingdom.
The material part of the guidance for Tier 4 students issued as a result of the decision in Patel (pp.62 – 63 of version 06/12) states that, where a sponsor's licence is revoked while an application by a student is under consideration, the CAS becomes invalid but:
"If the student was not involved in the reasons why the Tier 4 sponsor had their licence revoked, we will delay the refusal of his/her application for 60 days to allow the student to regularise his/her stay or leave the UK. The action a student can take to regularise his/her stay in the UK depends on what leave he/she has:
… If the student's permission to stay has expired while he/she was awaiting a decision on his/her application, we will delay the refusal of his/her application for 60 days to allow the student to obtain a new Confirmation of Acceptance for Studies from a different sponsor and vary their application or leave the UK.
…"
The factual background
Mr Khan, a Pakistani national, arrived in the United Kingdom on 28 September 2010 with a visa valid until 21 February 2012. On 20 February 2012, he made an application for further leave to remain as a Tier 4 (General Student) migrant. He sought to undertake a course of study at Lincoln's College London, at that time a registered licensed sponsor, and he provided the proof of sufficient funds to maintain himself during the course during the relevant 28 day period. Since Mr Khan made his application a day before his existing leave expired, section 3C of the Immigration Act 1971 operated to extend his leave.
As I have stated, on 23 May 2012 the UK Border Agency revoked Lincoln's College's licence. The effect of that was that Mr Khan's CAS from that college became invalid and his application was bound to fail because no points could be awarded for the CAS.
When the UKBA came to consider Mr Khan's application, in accordance with the post- Patel policy guidance, in its letter dated 15 August 2012 it stated that it would suspend consideration of his application for a period of 60 days. The material parts of this letter stated:
"During this 60 day period it is open to you [to] withdraw your application and submit a fresh application in a different category or to leave the United Kingdom. If you do decide to withdraw your application, you will need to confirm this by writing to us at the address given at the top of this page.
However, if you wish to remain in the UK as a Tier 4 student it is open to you to obtain a new CAS for a course of study at a fully-licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application.
If you decide to do this, you will need to find a new Tier 4 educational sponsor, who will need to issue you with a new CAS. In order to assist you in obtaining a new CAS, we have enclosed with this letter an information leaflet which … explains to [any potential new sponsors] that you have an application outstanding …"
The letter as enclosed a certified copy of Mr Khan's passport, which any new sponsor would need to see. It then stated (in bold type):
" Important — please note:
… If you obtain a new CAS, then you will need to submit fresh and up-to-date documents with your application to vary, for example, bank statements showing you are in possession of sufficient funds to cover your course fees and the maintenance requirement.
You will also need to complete a fresh Tier 4 (General) application form — the most up-to-date version of this form is available on the UKBA website at [link given]."
Mr Khan submitted a fresh Tier 4 (General) application form together with a new CAS from a new college, Edward's College, and bank statements spanning the period between 8 September and 5 October 2012. The financial...
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